As a practical matter, however, the decisions might have little impact. Both the Michigan and Ohio decisions were quickly appealed, and stays have been requested in bothcases. As Rick Hasen suggests, the Supreme Court seems likely to grant stays in both pending its ruling in the North Carolina and Maryland cases. If the remedial process is dragged out long enough, the plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases. Plaintiffs in a racial gerrymandering case from North Carolina faced a similar fate a few years ago when the Supreme Court held a case for months without action.

In both the Michigan and Ohio decisions, the district courts concluded their holdings on the merits by enjoining future elections under the challenged districts. SeeMich. Slip Op. 144 and Ohio Slip Op. 294. These injunctions trigger a direct appeal to the Supreme Court under 28 U.S.C. § 1253, which allows the defendants to pause the remedial process before it even has a chance to get underway. But this need not be how redistricting cases play out. The majority opinion in Abbott v. Perez applied an aggressive reading of 28 U.S.C. § 1253 that prevented the district court in that case from bifurcating the merits and remedies stages, but even the Abbott Court recognized that a State cannot always appeal a district court order holding a redistricting plan unlawful.

As the Abbott Court
stated, “[a] finding on liability cannot be appealed unless an injunction is
granted or denied, and . . . [i]f a plan is found to be unlawful long
before the next scheduled election, a court may defer any injunctive relief
until the case is completed.” 138 S.
Ct. 2305, 2324 (2018) (emphasis added).
By issuing its merits decision as a declaratory order and then developing
and entering its injunctive orders soon thereafter, a district court can consolidate
the review of all of its orders on
appeal and constrain the power of litigants to string-out the remedial timeline
through piecemeal appeals and successive requests for stays. Taking this approach might’ve allowed the
district courts in Michigan and Ohio to have a remedial plan in hand before enjoining
future elections, thereby increasing the odds of timely relief.

These suggestions are not limited to partisan gerrymandering cases. No matter what the Supreme Court decides this term, plaintiffs will still bring plenty of redistricting lawsuits in the years ahead, including one-person one-vote claims, racial vote-dilution claims, and racial sorting claims. If district courts are going to provide timely relief in these cases, they’ll need to start adopting case-management methods that minimize the ability of states to manipulate the judicial process. And if the Supreme Court does adopt a partisan gerrymandering standard this June, the district courts in Michigan and Ohio will need to act especially fast if voters are to see any relief in 2020. Hopefully it won’t be too late.